Citation Nr: 1302556
Decision Date: 01/23/13 Archive Date: 01/31/13
DOCKET NO. 09-38 745 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for pes planus.
ATTORNEY FOR THE BOARD
K. Osegueda, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1978 to December 1982, from April 1983 to March 1988, and from January 1991 to April 1991.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.
In December 2011, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
FINDINGS OF FACT
1. The Veteran was notified in a December 2011 letter and in a December 2011 phone message that he was scheduled for a VA examination on December 29, 2011; however, he did not report for that examination.
2. The Veteran was informed in an August 2012 Supplemental Statement of the Case (SSOC) that his claim could be denied if he failed to report for a scheduled VA examination without good cause. He was provided an opportunity to respond to the notification.
3. The Veteran did not contact VA in regard to the examination and has not provided any good cause for failing to report for the examination.
CONCLUSION OF LAW
The claim for service connection for pes planus must be denied as a matter of law due to the Veteran's failure to report for a scheduled VA examination. 38 C.F.R. § 3.655 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
A review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in December 2008.
This letter effectively satisfied the notification requirements of VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate the claim for service connection; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
In addition, the December 2008 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).
With regard to timing, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the January 2009 rating decision on appeal. Therefore, there is no timing error.
Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as a defect that was outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).
With respect to the duty to assist, the RO has secured the Veteran's service treatment records and VA treatment records. For his part, the Veteran has submitted personal statements and representative argument.
Pursuant to the December 2011 Board remand, a VA examination was scheduled in to determine whether the Veteran's current foot disorder was incurred in or aggravated by service. The Veteran did not appear for the scheduled examination and has not provided good cause for failing to appear. Thus, VA did attempt to comply with the remand directives, but the Veteran's failure to report frustrated that attempt.
All relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.
The Veteran has not identified, nor does the record otherwise show, any additional existing evidence that is necessary for the adjudication of the claim that has not been obtained.
The pertinent, applicable duties to notify and assist have been satisfied. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
Failure to Report for VA Examination
In November 2008, the Veteran submitted a petition to reopen a previously denied claim of service connection for pes planus. The RO denied the petition in a January 2009 rating decision. In December 2011, the Board determined that the Veteran had submitted new and material evidence sufficient to reopen the claim; however, as the evidence did not show a nexus between the Veteran's current foot disability and service, the Board remanded the claim for hearing loss for a VA examination.
In a letter dated on December 16, 2011, the RO informed the Veteran that it had scheduled him for an examination in connection with his claim. The letter also stated that the claims file would be returned to the RO without action if he failed to report to the examination. The Veteran failed to report to the examination without good cause.
There is nothing in the claims file to suggest that the Veteran did not receive notification of the examination. Moreover, he has not contended that he did not receive notification from VA. Therefore, the Board finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations).
Moreover, there is documentation in the claims file noting that some also called the Veteran on December 19, 2011, regarding the scheduled examination. The Veteran did not answer, but a phone message was left for him.
The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. Section (a) of the regulation provides that when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. Section (b) of the regulation provides that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.
The Veteran did not respond to the December 2011 notice or phone message stating that he would be unable to report for the VA examination. He was also notified of the provisions of 38 C.F.R. § 3.655 in an August 2012 Supplemental Statement of the Case (SSOC), and he was provided the opportunity to respond before the case was returned to the Board. To date, he has not submitted any response. Therefore, the Board also concludes that the Veteran has not shown good cause for his failure to report for the examination. See 38 C.F.R. § 3.655. A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).
The Veteran's failure to report for the December 2011 VA examination without a showing of good cause constitutes a failure to cooperate in the development of his claim. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence.
In this case, the Veteran's claim for service connection for pes planus was previously denied in a June 2006 rating decision, and the Board reopened the claim in December 2011. The provisions of 38 C.F.R. § 3.655 plainly require that VA must deny a claim for a benefit which was previously disallowed when the claimant fails to report for an examination without good cause. As the Veteran failed to report for an examination scheduled for his reopened claim and he has not shown good cause for failing to appear, his claim for service connection must be denied.
ORDER
Service connection for pes planus is denied.
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JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs